Did the title of this week’s Musings get your attention? I hope so. If it didn’t, maybe I should say it again. Mediation (often) isn’t about money. I know, you thought that the bottom line in litigation or other dispute resolution (particularly in the construction field) was money. Before I added “construction mediator” to the services that my firm provides, I thought so too.
In my role as a construction litigator and counselor for and to contractors and subcontractors, the rules of the road required a focus on the contract (because that determined the basic rules), what work was done and who owed (or would owe) money. I knew that, if the matter got to court, only a limited number of the facts and circumstances that lead to the dispute would be relevant. I also knew that, for the most part, the emotions, previous relationship of the parties, and many other things that could be important to the individuals presently squaring off in court (or arbitration) would not see the light of day. For these reasons, aside from listening carefully to the full narrative from my own client, these non-contractual/non-monetary factors did not really play a part in the world of commercial construction litigation.
Even participation in mediation as counsel for one of the parties only gave me a glimpse of the possible non-monetary factors that lead to a seeming purely monetary dispute. When representing one side or the other, we construction attorneys (or at least I) tend to focus on the numbers and the potential court result. Based on my (or the mediator’s) assessment of the risks of litigation coupled with the possible recovery I advised my client on the range and adequacy of any potential settlement. Rarely did my thinking move away from this type of calculus.
Much of that has changed since I have become a certified Virginia Supreme Court mediator. During the training and subsequent service as a mediator in various courthouses in Virginia, I began to realize that money may not be the sole reason the dispute was not resolved short of attorney or court intervention. Quite often the parties have completely different views of the other side than the attorneys that represent them.
I realized that mediation (as opposed to litigation) allows the parties and the mediator to explore avenues of discussion and resolution that simply are unavailable in any other form of “formal” dispute resolution. Rules of procedure and evidence do not apply. The result need not be one side wins, the other loses. The parties can discuss everything from the phone call that wasn’t returned to the fact that they felt slighted on an occasion completely unrelated to the matter at hand. Would this sort of “evidence” be admissible in court? Of course not. But in mediation, this “evidence” may very well resolve the matter.
Does all of this mean that money, risk and reward are never discussed? Of course not. The parties to a construction dispute will eventually get down to money and who will pay and how. Their attorneys will need to advise them on the propriety of any settlement offer before any mediated agreement will be signed. However, I have learned that in many cases (if not most) the non-monetary, legally irrelevant “facts” are often the ones that need to be aired and dealt with to allow the business owners in a construction dispute to resolve their disputes.
The flexibility of mediation and the ability to move beyond the strictures of the rules and procedures of the courtroom, in my mind, is one of the reasons that I have found mediation to be such a successful alternative dispute resolution mechanism both in my role as attorney and my role as mediator.
What are your thoughts on this? Please let me know.
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